Citation Nr: 1417350
Decision Date: 04/17/14 Archive Date: 05/02/14
DOCKET NO. 05-00 027 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Montgomery, Alabama
THE ISSUES
1. Entitlement to a rating in excess of 30 percent for celiac sprue, to include on an extra-schedular basis.
2. Entitlement to service connection for arthralgia, to include as secondary to service-connected lupus.
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
K. R. Fletcher
INTRODUCTION
The Veteran served on active duty from November 1983 to August 1989.
This matter is before the Board of Veterans' Appeals (Board) on appeal from a May 2003 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. The Veteran testified before the undersigned in February 2010. A transcript of the hearing is of record.
In October 2011, the Board (in pertinent part) denied entitlement to service connection for arthritic pain and remanded the claim for an increased rating for celiac sprue so that additional private treatment records could be obtained and the Veteran could be afforded a VA examination.
The Veteran appealed the October 2011 Board decision to the United States Court of Appeals for Veterans Claims (Court). In a June 2012 Order, the Court granted a Joint Motion for Partial Remand of the parties, and vacated only the portion of the Board's October 2011 decision that declined to evaluate whether the Veteran is entitled to VA disability benefits for arthralgia due to her service-connected lupus. In this regard, the parties noted that an October 2007 VA examiner had provided a diagnosis of "arthralgia due to systemic lupus erythematous." The parties agreed that remand was required to address whether the October 2007 VA examination report constituted an informal claim of service connection for arthralgia.
In an April 2013 decision, the Board denied a rating in excess of 30 percent for celiac sprue. The Board also stated that the issue of entitlement to service connection for arthralgia, to include as secondary to lupus, had been raised by the record, but had not been adjudicated by the Agency of Original Jurisdiction (AOJ). The Board stated that it did not have jurisdiction over the issue, and therefore referred the issue to the AOJ for appropriate action.
The Veteran appealed the April 2013 Board decision to the Court. In an October 2013 Order, the Court granted a Joint Motion for Vacatur and Remand of the Board Decision, and vacated the October 2013 Board decision. The Joint Motion was silent as to the increased rating issue; however, because the October 2013 Board decision was vacated in its entirety, that issue remains on appeal. Regarding the service connection issue, the parties agreed that the Board failed to provide an adequate statement of reasons or bases for its determination that referral of the claim seeking service connection for arthralgia was appropriate. See Godfrey v. Brown, 7 Vet. App. 398 (1995) (remand appropriate where proper evidentiary development has not been completed; referral appropriate when newly raised claim is not in administrative appellate status)).
In addition to the paper claims file, there is a Virtual VA (VVA) electronic claims file associated with the Veteran's claim. The documents in the VVA file include a March 2014 Informal Hearing Presentation. The remaining documents are either duplicative of the evidence in the paper claims file or are irrelevant to the issues on appeal.
The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action on her part is required.
REMAND
The Veteran seeks a higher rating for service-connected celiac sprue. She also seeks service connection for arthralgia, to include as secondary to service-connected lupus. A review of the record shows that further development is necessary prior to analyzing the claims on the merits.
As regards service-connected celiac sprue, the assigned 30 percent disability rating (in effect for the entire period on appeal) is the maximum schedular rating available under 38 C.F.R. § 4.114, Diagnostic Code 7319. Accordingly, a schedular disability rating higher than 30 percent for celiac sprue is not available under Diagnostic Code 7319. To establish entitlement to an increase the evidence must show it is warranted under alternate criteria, or on an extra-schedular basis.
According to § 3.321(b)(1), an extra-schedular disability rating is warranted upon a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that would render impractical the application of the regular schedular standards. See Fanning v. Brown, 4 Vet. App. 225, 229 (1993). In Thun v. Peake, 22 Vet. App. 111 (2008), the Court stated that the threshold factor for extra-schedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. If the rating schedule is inadequate to evaluate a Veteran's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or Director of the Compensation and Pension Service to determine whether, to accord justice, the Veteran's disability picture requires the assignment of an extra-schedular rating. Id.
On remand, a VA medical opinion should be obtained to identify all celiac sprue symptoms over the course of the appeal period, to include the effects of this disability on the Veteran's ordinary life and occupation.
As regards the claimed arthralgia secondary to service-connected lupus, an October 2007 VA examination report notes no objective findings (no pain on motion, limited motion on repetitive use, instability, effusion, or inflammation) pertinent to the joints and essentially normal X-ray studies, and a diagnosis of arthralgia secondary to service-connected lupus. The examiner also stated that the Veteran's arthralgia had "significant effects" on her occupation and had effects on her daily activities, to include reaching overhead, walking, sitting and picking up objects. Because of the inconsistent nature of these findings, an addendum opinion is needed. On remand, the examiner should identify all lupus arthralgia symptoms over the course of the appeal, including dates of onset and increased symptoms. The examiner should also address the effects of lupus arthralgia on the Veteran's ordinary life and occupation at those points.
Accordingly, the case is REMANDED for the following action:
1. Obtain an opinion from a VA examiner with the appropriate expertise to identify all celiac sprue symptoms over the course of the appeal period, to include the effects of this disability on the Veteran's ordinary life and occupation. The claims file, including a complete copy of this remand, must be made available for review of the pertinent medical and other history.
The examiner should describe all symptoms caused by the service-connected celiac sprue, as well as the severity of each symptom, over the course of the appeal period (since November 30, 2001). The examiner should provide a full description of the effects the disability has had on the Veteran's ordinary activities over the course of the appeal period. The examiner should also fully describe the impact the disability has had on the Veteran's economic adaptability over the course of the appeal period.
Rationale for all requested opinions shall be provided. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation stating why this is so. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s).
2. Arrange for the examiner who conducted the October 2007 VA examination to offer an addendum opinion. If the examiner is unavailable, an examination should be scheduled with an appropriate medical specialist. The Veteran's claims file and a copy of this remand must be made available for review.
The examiner should identify all lupus arthralgia symptoms over the course of the appeal (since November 2001), including dates of onset and increased symptoms. The examiner should also address the effects of lupus arthralgia on the Veteran's ordinary activities and occupation at those points.
Rationale for all requested opinions shall be provided. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation stating why this is so. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s).
3. Thereafter, readjudicate the claim of entitlement to a rating in excess of 30 percent for celiac sprue, to include on an extra-schedular basis, and the claim of service connection for arthralgia, to include on a secondary basis, in light of the additional evidence. If the claims are not granted to the Veteran's satisfaction, send her and her representative a SSOC and give them an opportunity to submit additional evidence and/or argument in response before returning the file to the Board for further appellate consideration.
The appellant has the right to submit additional evidence and argument on the matters the Board has remanded. See Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the Court for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2013).
_________________________________________________
T. L. DOUGLAS
Acting Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2013).